Law banning doctors from disclosing sex of fetus overturned

Posted on : 2008-08-01 13:49 KST Modified on : 2019-10-19 20:29 KST
Disparity in sex ratio will increase due to cultural preference for sons, critics say

The Constitutional Court has ruled that clause 2, article 20, of a medical law banning doctors from disclosing the sex of fetuses does not conform to the Constitution, meaning that the law remains in force until a new law revision is implemented. The ruling was made with the consent of eight justices and the objection of one.

A new law will be enacted to allow parents to know the sex of an unborn baby during the second half of the pregnancy but there is a concern that this will spur an increase in the number of abortions performed and the imbalance in the sex ratio will worsen due to a cultural preference for sons over daughters.

The court said that completely banning doctors from revealing the sex of fetuses restricts the freedom of doctors to do their jobs, while violating a pregnant women’s right to information about her unborn baby. The current law will remain in effect temporarily until new legislation is enacted.

The purpose of the law was originally to prevent sex-selective abortions, to ease the imbalance in the sex ratio and to protect an unborn baby’s right to live. However, the nation’s cultural preference for boys has markedly decreased in recent years, the court said in its ruling. In 2006, the sex ratio was 107.4, which is closer to 106, the sex ratio when abortion is excluded. It is questionable whether the imbalance in the sex ratio is a serious social problem and whether disclosing the sex of a fetus works to increase the number of abortions, the court added.

Judge Lee Dong-heup, who provided the sole dissenting opinion, said, “Pregnant women just want to know the sex of their unborn babies.” He also said that “abortions can still be performed even during the latter half of pregnancy.”

Medical professionals have long demanded that the law be revised, saying that it is almost impossible to perform late-term abortions and criminal law already imposes punishment for illegal abortions.

The Ministry of Health, Welfare and Family Affairs is opposed to the revision, however, saying that the number of sex-selective abortions was approximately 2,500 as of 2005.

During a hearing on the issue in April, lawyers presented a case in which an abortion had been performed during the 31st week of pregnancy.

The sex ratio at birth, the number of boys for every 100 girls, for the first child was somewhat balanced at 104.8 in 2005 but the figure was 128.2 for the third child, showing a tendency toward sex selection. However, the number of people punished for performing illegal abortions is less than 10 every year.

The court advised the National Assembly to rewrite the law during the coming year. The Mother and Child Welfare Act permits abortions in only five cases, including genetic disease, sexual violence and incest, but abortion is banned after the 28th week of pregnancy to protect the health of the mother. It is likely, then, that the new law revision will permit doctors to disclose the sex of fetuses after the 28th week of pregnancy.

A person identified as Jeong filed a petition with the Constitutional Court after a doctor refused to tell him the sex of his unborn baby even after his wife had been pregnant for seven months. A doctor identified as Roh also submitted a petition to the court after being suspended for disclosing the sex of an unborn fetus.

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